U.S. judge allows families to use cockpit voice recording as evidence in Buffalo plane crash lawsuits

STAN HONDA/AFP/Getty ImagesThe tail of the airplane is visible as debris burns at the scene of a Continental Airlines crash Feb. 13, 2009, in Clarence Center, N.Y., just north and east of Buffalo. At least five families reached settlements in their wrongful-death lawsuits against the airlines involved.

BUFFALO, N.Y. — Families suing over the 2009 plane crash of a Continental Connection flight into a house will be allowed to use the cockpit voice recording as evidence because a judge determined a transcript doesn't convey enough information to ensure a fair trial.

"The written transcript does not and cannot reflect tone of voice, pitch, volume or inflection," U.S. District Judge William Skretny wrote in a decision released Tuesday, "nor does it necessarily accurately reflect ambient and other noises pertinent to the aircraft's operation."

Skretny ordered the recording to be filed under seal and for lawyers to submit an order to prevent its release to the public. The order is meant to protect the flight crew's privacy and address concerns that the recording could influence potential jurors, he said.

The recording likely will be heard only by the lawyers and their expert witnesses, attorney Justin Green, of Kreindler & Kreindler LLP, said today. The New York City law firm represents several victims' relatives in their wrongful death suits against Continental Airlines and Colgan Air, the regional carrier it contracted to operate the Newark-to-Buffalo flight. Also named are Colgan parent Pinnacle Airlines and Bombardier Inc., which manufactured the Dash 8-Q400 aircraft.

The plaintiffs' lawyers sought the recording to illustrate the atmosphere in the cockpit and the pain and suffering of passengers. They argued the fear evident on the recording would be similar to the fear experienced by passengers as the plane pitched and rolled before plummeting onto a house.

All 49 people aboard the flight and the home's owner were killed.

"In addition to the tones of voices of the captain and first officer," Green said today, "you also are going to get the background noises of the warning systems activating, the gear system going down, all of those things that are relevant to our investigation into what the cause of the crash was."

Attorneys for Colgan and Pinnacle had argued that the written transcript sufficiently reflects what happened in the cockpit during the short flight and that the recording would sensationalize allegations of pilot error in a way that could prejudice potential jurors.

The case is tentatively set for trial in March 2012.

David Harrington, lead attorney for Colgan and Pinnacle, was out of town and not immediately available to comment on Skretny's decision, his New York City office said.

Bombardier favored the recording's release while Continental did not take a position.

The National Transportation Safety Board said in February that the pilots' improper response to a low-speed warning led the plane to stall and crash in the Buffalo suburb of Clarence, about five miles short of Buffalo Niagara International Airport. Among contributing factors, the panel said, were the crew's inattention to airspeeds and violation of regulations prohibiting unnecessary conversation during takeoffs and landings.